Occupational Health advice

Although it is now well established in law that employers must not uncritically accept advice from occupational health advisors about whether someone is disabled, the Court of Appeal has held in Donelien v Liberata UK Ltd that equally they should not ignore it completely. Instead it should be assessed along with all the other facts that they know about.

Basic facts

Ms Donelien had worked for Liberata UK, a large business providing outsourcing and business services, since 1999. She initially specialised in housing benefit and council tax, but moved in 2004 to the post of “Court Officer”.

In the latter part of 2008, her attendance started to become erratic which she attributed to various physical problems related to high blood pressure caused by pressure at work. In November that year after a period of sickness. She told her manager that she felt burnt out due to the quantity and pace of work.

After a further absence in 2009, her employer agreed with her GP that she could return to work on a phased basis. However, this did not resolve the problem and after further periods off sick, she was referred to an occupational health (OH) specialist who concluded that the underlying issue was "managerial rather than medical”. There was, therefore, no reason to believe that she was disabled.

After further periods of prolonged absence in July and August 2009, she was disciplined in September and dismissed. She claimed, among other things, that her employer had failed to make reasonable adjustments for her. The issue for the tribunal to decide, therefore, was whether the company could have known that she was disabled.

Tribunal and EAT decisions

Based on the advice received from OH, along with their own experience and impressions and the two letters that they had received from the GP, the tribunal held that the company could not have known (nor could it reasonably have been expected to have known) that Ms Donelien was disabled.

Further, the tribunal held that the company had done everything it could reasonably have been expected to do in order to find out about the true nature of the health problems that Ms Donelien was experiencing in that it had referred her to OH, it held a series of return to work meetings and discussions with her and had acted on the advice in the letters that her GP had written to them. Indeed, they could not reasonably be expected to have done more. The EAT upheld that decision.

Ms Donelien appealed, relying (among other things) on the decision of the Court of Appeal in Gallop v Newport City Council (weekly LELR 357) which held that employers must make up their own minds about whether an employee is disabled rather than relying on the advice in an occupational health report.

Decision of Court of Appeal

Distinguishing Gallop, the Court of Appeal held that the tribunal in this case had not treated the fact that the company had received advice from OH consultants as conclusive. Instead it had also taken into account the company’s own experiences, the meetings they held with Ms Donelien and the letters they had received from the GP. They had not, therefore, treated it uncritically.

The Court emphasised that the test for employers is what they could reasonably be expected to know and whether, overall, they could have been expected to have done more. It was, in other words, not one of perfection but of reasonableness.

Finally, the fact that the company made a change to Ms Donelien’s working conditions did not necessarily imply knowledge of an impairment sufficiently substantial to constitute a disability.